The Supreme Court in New York State Rifle & Pistol Association v. Bruen (2022) struck down the New York statute known as the “proper cause” requirement. In a 6-3 ideological vote authored by Associate Justice Clarence Thomas, the majority found that the states’ need for an applicant to provide a subjective, particular need for self-protection to receive an unrestricted concealed carry license—which allows for the possession of a a firearm outside the home—violated the Fourteenth Amendment by preventing law-abiding citizens from exercising their Second Amendment right to bear arms in public for self-defense. Justice Thomas and his majority scrapped a two-part test precedent that lower courts have used to examine gun-control legislation and instead adopted a “text and history” approach to constitutional rights. This new approach will significantly determine what is and is not considered a “fundamental liberty.” In the scope of gun-control legislation, this ambiguous approach to constitutional law has produced various state supreme court rulings, making the expansive right to own a firearm effectively bulletproof.
Before Bruen, the “tiers of scrutiny“ approach was widely used in many constitutional law cases. This approach first examines if the conduct the government is trying to regulate is protected by the Constitution and then, if so, whether the regulation is narrow enough that it advances a specific public interest. Justice Thomas’s rationale in his Bruen opinion starts with the plain language of the Second Amendment. Since the Second Amendment articulates the conduct in question, the government must justify that the regulation is “consistent with this Nation’s historical tradition of firearm regulation.” Judges now will disregard the interest of the state that the law is trying to set forth, such as public safety.
Justice Thomas and his majority must provide clear guidance for lower court judges. These lower courts are reaching different conclusions on the same statutes by applying Bruen’s method inconsistently. The immediate effects show how the gun-control landscape is changing rapidly. In February of this year, a three-judge panel for the U.S. Court of Appeals for the Fifth Circuit in New Orleans ruled that a federal law’s ban (18 U.S.C. §922(g)(8)) ban on firearm possession for people subject to domestic violence restraining orders is unconstitutional (United States v. Rahimi). Through the Bruen method, the judges found that this law is an “outlier that our ancestors would never have accepted.” The Fifth Circuit Court’s ruling only applies to Texas, Mississippi, and Louisiana. Still, since the regulation was a federal law, similar sentences will likely appear in other states.
In addition to domestic abusers, non-law-abiding drug users have regained their once-lost Second Amendment rights. A federal judge in Oklahoma ruled that federal law (18 U.S.C. §922(g)(3)) prohibiting “unlawful users or addicts of controlled substances” to own firearms is unconstitutional (United States v. Harrison). After a Bruen-like historical analysis, the judge believed that the “mere use of marijuana“ was not a means to restrict gun access. This case is interesting when it comes to the alleged facts. The police officer who arrested Harrison noticed that the defendant wore an ankle monitor. When asked about the monitor, Harrison said he was on probation for aggravated assault. However, in actuality, Harrison was on bond pending trial in Texas, rather than on probation. The aggravated assault involved Harrison and another man allegedly opening fire into a college party crowd. Harrison thus seemed like an unlawful user of controlled substances, appearing to make Justice Thomas’s classification of law-abiding citizens excessively broad.
In another example, a West Virginia federal judge ruled that a federal law preventing the possession of a gun with its serial number altered or removed is unconstitutional under Bruen (United States v. Price). The federal judge reasoned that because serial numbers on firearms were not required at the adoption of the Second Amendment and were not widespread until the Gun Control Act of 1968, federal law falls outside his scope of tradition. The Gun Control Act established that firearms require serial numbers so the government could prevent illegal gun sales and track guns in criminal cases. These kinds of weapons are known as “ghost guns,” which have proven to be a growing concern for the United States. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), in a 2023 report, concluded that ghost guns being used in crimes are increasing. Also reported was that the number of suspected ghost guns recovered and sent to the ATF for tracing and tracking “increased by 1,083% from 2017 (1,629) to 2021 (19,273).” These DIY guns made available to anyone and everyone with no restrictions whatsoever are increasingly being used in deadly crimes. As we provide the new Constitutional right to own a firearm with no serial number, we discard people’s right to life. The cases outlined led me to ask, how broad is too broad? U.S. District Judge David Counts from Texas found that people under felony indictment have the Constitutional right to buy guns in September of 2022 (United States v. Quiroz). After Counts found “little evidence” that the United States’ history restricts those with felony charges of their Second Amendment right, he casts doubt on what is really the actual cause of concern with Bruen: “The unknown unknown: the constitutionality of firearm regulations in a post-Bruen world.” Justice Thomas and his conservative majority should provide an actual guidepost to Bruen’s “text and history” approach when confronting future gun-regulation cases to avoid constitutional ambiguity and future injustices.
